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March 14, 2011

Honesty apparently not the best policy for one federal child porn defendant

I believe in, repeat to my kids, and try to live by the credo "Honesty is the best policy."  But this local story of a federal child porn sentencing in Alabama, headlined "Unregistered sex offender’s honesty about sexual urges lands him harsher sentence," spotlights that federal defendants can sometimes be forced to pay a steep price for honesty. Here are the notable details:

Had it not been for Michael Wayne Powell’s honesty with probation officers, a federal judge here acknowledged, the Chunchula man likely would have gotten a routine prison sentence for having child pornography.  But Powell, 54, told a probation officer working on his presentence report that he had sexual urges that he could not control.

U.S. District Judge Ginny Granade last week sentenced Powell to 20 years in prison, a rare instance of a federal judge imposing punishment greater than the range set forth under advisory sentencing guidelines.  “Because of his admission that he cannot control himself. ... I find in this particular case, a guideline sentence is not appropriate,” the judge said.

Assistant U.S. Attorney Adam Overstreet noted that the defendant has a prior conviction for trying to lure an 11-year-old girl for sex.  Powell then failed to register as a sex offender as required by law, said Overstreet, who sought the maximum 40-year sentence. Overstreet also pointed out that Powell underwent 840 days of sex offender counseling while incarcerated in Oklahoma — apparently to no avail.  Law enforcement authorities found 788 pictures of child pornography on Powell’s computer when they searched the Wilmer home where he was living at the time....

Assistant Federal Defender Chris Knight said a 40-year prison term would be “absolutely, substantively unreasonable” for an offense that did not involve contact with a minor.  “It’s a run-of-the-mill child pornography case, and I think it calls for a sentence within the guidelines,” he said.

According to court records, Powell told a probation officer that he had never touched a child but would if he had the chance.  He called himself a danger to the community, according to the presentence report.  “All I can do is ask for mercy,” he said last week. “I know I committed this crime.  And I know how bad it is.  But I had no victim.  The victim is myself.  It’s a disease.”

March 14, 2011 at 12:25 PM | Permalink

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Comments

wow! what a way to influence people who think they have a problem to seek help!

this jude is a retarded criminal idiot!

pity he got this part right!

"“Because of his admission that he cannot control himself. ... I find in this particular case, a guideline sentence is not appropriate,”

Then completly screwed the pooch with everything else. The man knows he's got a problem. The man knows he needs to tell people about the problem and get help!


WHAT in this indicates they need to lock he up for MORE than the legally set time? if anthing it should have REDUCED it

Posted by: rodsmith | Mar 14, 2011 1:41:12 PM

When people say, "Honesty is the best policy," they don't mean that it's the most profitable policy, which sometimes it isn't. They mean that in the long run, you (and those around you) are better off, and more at peace, if you're straight.

Honesty is the foundation of trust, which is in turn the foundation of any relationship worth the name.

Posted by: Bill Otis | Mar 14, 2011 2:43:35 PM

One must wonder how and whether the Public Defender properly prepared his client for his Pre-Sentence interview with the U.S. Probation Officer, who was writing his Pre-sentence Investigative Report (PSR). I have seen other examples where defendants ended up with dramatically longer sentences because their counsel didn't properly prepare them for this critical interview. There is an inmate incarcerated at FCI-Manchester, Ky. who wrote computer code for Diebold, which makes bank vaults and ATMs. He wrote a secret sub-routine into some ATM code, so that he could go to any Diebold ATM, punch in the secret code, and the machine would give him all of the money it contained! He did this several times,was eventually caught(he forgot about those cameras focused on the ATM user!) and pleaded guilty. The Federal crime was bank larceny (not bank robbery!), and he wasn't looking at more than about 4-7 years. During his PSR interview, in the presence of counsel, the Probation Officer asked him whether he had been carrying a weapon with him when he robbed the ATMs. He candidly responded that on each occasion, he had carried a pistol. His defense counsel had not explored this issue in preparing the defendant. Because of his honesty about the pistol (which the Probation Officer never would have known about if he hadn't volunteered the information!), the defendant received a 53 year sentence. The day after his sentence was affirmed on appeal, he hanged himself at work in prison, but was cut down before he died. It is unlikely that he will serve out his sentence and ever be released back to the free world. Defense counsel need to carefully prepare defendants for these PSR interviews, to avoid permitting the defendant to get himself into trouble and receiving a dramatically longer sentence than he might otherwise receive.

Posted by: Jim Gormley | Mar 14, 2011 4:45:28 PM

You can't help but feel sympathy, and indeed respect, for someone who tells the truth knowing that it's going to cost him. Ordinarily, were I the judge, I would seriously consider granting a defendant like this a downward departure, not imposing an upward one. For a defendant to come completely clean, as this one did, is in my experience so rare that it easily qualfies as outside the heartland. That's because the "heartland," for the typical felony defendant, is rampant lying -- or, if he can't get away with that, being as deceitful as he thinks he CAN get away with.

But what was this judge supposed to do?

The court has before it a man who's had an eon of "counseling." He has a prior conviction for attempting to molest an 11 year-old. He tells the judge he's a danger to the community. He cannot control himself or his urges. He's 54 years old, and you know he's not going to change at this point.

What do you do?

If you give him a sentence where he can get back on the outside, he could very well -- indeed, he's all but said he's going to try to -- molest another girl.

Suppose he makes good on it? At his next sentencing, the girl's father confronts you, the judge, and says, "You knew last time that he would do this to my child -- either that or someone else's child. But you arranged it so he could get out. My daughter is a human being and is as much deserving of the law's protection as this man, and you were obliged, as a judge and as a person with any sort of conscience for that matter, to give it to her. You didn't. Why not?"

As I say, I feel for this man. I devoutly wish the legal profession required of its practitioners the degree of honesty he displayed.

Defense lawyers all the time toss around the word "tragedy" when what they're actually talking about is malevolence. (E.g., "What happened to the store clerk was a tragedy," when the more candid words would be, "When my client blew the store clerk's head off to clean out the cash register, it was a damnable crime"). But the story heading this thread actually is a tragedy.

Posted by: Bill Otis | Mar 14, 2011 6:06:45 PM

Here. Lawyer advice from an expert. Never Talk to the Police.

http://www.youtube.com/watch?v=6wXkI4t7nuc

I go beyond this advice. There is an affirmative duty of the productive male to derail the prosecution. Not only refuse to say a word about oneself, but demand total e-discovery on the cult criminals. They have the moral standing of Mafia goons coming to a store and demanding payment to avoid its burning down. There is a duty to capture these Mafia goons, torture them, and behead them, deliver the heads to the mafia don before blowing up his building with him in it. This is the doctrine of self-defense against a criminal syndicate.

In the case of the vile lawyer and judge, e-discovery is a good start and the equivalent of being captured and tortured, since all their computers are the likeliest to contain child porn. Refer all such porn to the FBI. As they make it unbearable for the whole country, so should we make unbearable to be them. To deter.

Posted by: Supremacy Claus | Mar 14, 2011 10:13:45 PM

i was just thinking the same thing SC stupidity like this and what was posted about the programmer show one thing. NEVER tell authority a DAMN thing. I dont' see any where an justification to cooperate with the govt on their pre sentence report. They might be able to force you to show up...but getting anything outside of fuck off! as an answer is questionable.

Posted by: rodsmith | Mar 15, 2011 12:01:05 AM

Ironic. Had he molested a real child? Lesser penalty. He has never touched a child. This is punishment for thoughts. I have base thoughts about Britney Spears. Come and take me away. (But then, in my reverie, she begins to speak. All base thoughts evaporate immediately. And, I want to hit my head on a wall to stop the agony. Do I still need to be taken away?)

Let him get treatment for these thoughts at his own expense. Why punish the taxpayer for the ideas in the heads of pedophiles?

Posted by: Supremacy Claus | Mar 15, 2011 12:14:53 AM

Here's my philosophy: When in doubt, keep your mouth shut. When not in doubt, keep your mouth shut. Basically, just keep your mouth shut!!!

Posted by: George | Mar 15, 2011 3:04:30 AM

Do we think that he is the only offender who is "just viewing" pictures who has uncontrollable urges? If he wasn't so honest, he probably would have received a downward departure with his attorney and many on this blog saying, "he was just viewing pictures!" Hmmm....odd how some of those people are silent on this one.

Posted by: anon | Mar 15, 2011 9:57:44 AM

anon --

A very good point.

After a day of thinking about it, what's most striking here is the degree of cheerful indifference, shown in the comments, to the suffering of Powell's future victims if he had NOT told the truth.

It's just staggering that the reigning hide-the-ball "ethics" of the profession have less of a conscience than a pornagrapher and attempted child molester.

Is it any wonder lawyers have the reputation they do?

Posted by: Bill Otis | Mar 15, 2011 3:27:19 PM

horse pucky bill! here i thought the ideal was to STOP the abuse of children. Well guess what hammering those honest and willing enough to come forward ISN'T GONNA DO IT!

Posted by: rodsmith | Mar 15, 2011 3:47:37 PM

the good news for this icky perv is that by getting such a long inital sentence, he'll probably avoid "civil commitment."

Posted by: virginia | Mar 15, 2011 5:01:32 PM

rodsmith --

I think your direct style is endearing, but every now and again you have to THINK about what you say.

"i thought the ideal was to STOP the abuse of children."

Then he ought to be in prison, since there aren't too many 11 year-old's there.

"...hammering those honest and willing enough to come forward ISN'T GONNA DO IT!"

Honest and willing enough to come forward WITH WHAT? Ummmmmm......with the statement that he has no self-control and IS gonna do it.

That's what he said about himself. Do you know better?

Posted by: Bill Otis | Mar 15, 2011 5:48:46 PM

@Jim Gormley

There are plenty attorneys that do not prepare their clients for the Presentence Investigation Report [PSI].

It should also be noted that answering the probation agents questions is not mandatory. I have been told that a reason an offender may choose not to discuss the offense with the agent would be for appellate reasons. Also note that although a judge will use the PSI when imposing sentence, the PSI's significant role is used for BOP classification, restitution [if law permits], etc.

You can also object to the PSI report within 14 days of receiving it, and the court may also allow you to introduce evidence on the objections.

Posted by: Huh? | Mar 15, 2011 10:09:30 PM

Virginia:

You use the term, "icky perv" far too easily and it loses its effective meaning (I am supposing). I think that feminist law professor Catherine McKinnon, is as much an "icky perv" as this fellow.

You see, she never met a male she liked, much less a producing male (society, family, local groups. etc.).

Please define "icky perv"; are they young men who don't know how to approach women in "todays" environment and are they worthy of such dehumanization?

Bill:

As a past member of the gubermint (DOJ), you are aware of dehumanizing people.

Anybody that (ACTUALLY HARMS SOMEONE) should be treated justly. Someone who stands against the gubermint, i.e., obstruction of justice, lying to a Fed, talking ot LE over the internet, etc are not always what they are portrayed to be.

I am waiting to see which straw man you build, John Gacy, Timothy McVeigh, Martha Stewart, Bernie Madoff, etc.

PS: I am engineer with a lifelong learning (30 years) in law and regulations by necessity.

Posted by: albeed | Mar 15, 2011 11:53:45 PM

wrong bill i though about what i said.

My problem with it is they basically hammered him for telling the truth. This is NOT the way to get others you know that 80-95% of all sex criminals who are NEW FIRST TIMERS! to admit they have a problem and get HELP! that will help a hell of a lot more children then hammering this idiot.

What they should have done was said thanks we appreciate your honesty and since you say you want help. It will be in your court sentence that if you do not sucessfully complete a sex thearapy treatment program while in prison you will be required to submit to civil comittment to get that treatment afterward!

There you have now locked him up for some positive reinforcment to not touch even if he wants to. Plus given him an added encentive to buck the odds and TAKE the treatment before he gets out!

Posted by: rodsmith | Mar 16, 2011 12:47:29 AM

rodsmith --

"My problem with it is they basically hammered him for telling the truth."

Wrongo. They hammered him for what the truth WAS, to wit, that he was going to do it again.

"What they should have done was said thanks we appreciate your honesty and since you say you want help."

But he didn't say he wanted help. He said HE'D HAD help, it didn't work, he still had the urges and he was going to act on them if given the chance.

The sad realities of life are that rehabilitation for sex crimes does not work with everyone, on anywhere close to anyone. The guy is 54, he'd been through it all, and it didn't take.

I truly wish this painfully honest man could get a better outcome, but I ain't God.

Posted by: Bill Otis | Mar 16, 2011 5:17:42 AM

oh i know it doesn't work every time bill and i saw that about the 840 days of sex offender counseling while in oklahoma. But nothing there about if he sucessfully completed it or not to oklahoma's satisfaction. If yes then well this would be 2nd time around ...time to go bye-bye forever!

if not then seems oklahoma has a problem with their system that needs addressing and this guy still needs treatment. which brings us right back to trying to get MORE people who know they have a problem to come clean and GET it!

Posted by: rodsmith | Mar 16, 2011 3:23:41 PM

this one has had me kind of torn actually. Since i do want those who have a problem to come forward and get help and hammering one when they do it is not the way to promote that.

On the other hand you know my feelings about sex crimes or for that matter any other major or violent crime. You get one chance to straighten up after that you do it again. Time to lose the key!

Posted by: rodsmith | Mar 16, 2011 3:25:50 PM

"They hammered him for what the truth WAS, to wit, that he was going to do it again."

But Bill, I thought you believed that "there are no facts about the future." Are we allowed to make factual claims about the future or not?

Posted by: Michael Drake | Mar 18, 2011 7:59:00 PM

Michael Drake --

A defendant is allowed to make factual claims about what he intends to do, you bet. We wouldn't want to deprive him of his right to speak for himself, would we?

Do you think the sentencing judge should have ignored what the guy said he aimed to do -- indeed, could not control himself from doing?

Yes or no.

Any normal person would regard as insane -- not mistaken, insane -- a version of "ethics" that intentionally would screen off the sentencing court in a child porn case from the single most prepossessingly important fact about the defendant.

Can you even hear yourself?

Posted by: Bill Otis | Mar 19, 2011 12:46:53 AM

"A defendant is allowed to make factual claims about what he intends to do, you bet.

That isn't what I asked, and that isn't what Powell said. Bravo - in one brief sentence you've managed to put words in both our mouths.

What Powell said (or what the PO said he said (or what the reporter says the PO said Powell said)) was that he couldn't "control" his "sexual urges." Among other problems with your eager reliance on this statement to justify a 20-year term for a 54 year-old man convicted of possession is the fact that it leaves unclear just what was beyond the scope of his control. It might just be that he can't control having the sexual impulses he does.

Anyway, even if Powell now believes that he can't control his behavior, and so believes that he will resume collecting images of child pornography if given the chance, that is at best a personal impression, not a reliable prediction about his future conduct.

Posted by: Michael Drake | Mar 19, 2011 11:56:12 AM


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Posted by: jahira | Jul 31, 2011 3:28:42 AM

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